I intend insult by moments of levity.
26 The Court: as a county employee, I can't help
27 thinking listening to your argument how nice it would
28 be to have occasion in my life to be blinded by fees.
69
1 I intend insult by moments of levity. It?
2 Is how I balance and try to keep a very serious and
3 very intense movement civil and help people out.
4 It's my theory that when people are more
5 comfortable, they can do their jobs better, but I
6 intend no disrespect.
7 Go ahead, sir.
8 Mr. Berry: the court, I request, should
9 exercise its discretion balancing the equities upon
10 what is now known to have occurred here and which I
11 have submitted my papers includes the pulling of the
12 wool over the court's own eyes.
13 And the motion, as my papers have already
14 indicated, to disqualify the court were in part
15 premised on those responsible for this travesty. Not
16 even allowing me a ten minute grace period for me to
17 appear here at court and to seek $4,000 from me by way
18 of sanctions for being late in connection with a motion
19 to protect this man's files and physical safety and for
20 me to bring a motion in connection with their
21 misconduct.
22 Last week I came down to this courthouse
23 to file the exparte papers and was told that the court
24 was out of the courtroom thursday and friday. I told
25 the court clerk, therefore, we will bring it on Monday.
26 It was noticed to counsel all of last week. The court
27 has seen the written notices.
28 The Court: I apologize if I failed to
70
1 recollect that in my resustation this morning of what
2 had transpired. It was a surprise to me personally when
3 you were here Monday and I was not aware of any
4 discussion that you had with any member of the court
5 staff.
6 Mr. Berry: I was down here several times last
7 week, your honor.
8 The Court: very well.
9 Mr. Berry: and when the court was absent, they
10 told me no arrangement had been made for another judge
11 to hear ex partes.
12 The Court: yes, it is my preference to have
13 them myself. I don't know of any Judge so well that I
14 would wi~fl this matter on their calendar.
15 Mr. Berry: and I decided that we would suffer
16 the harassment that was going on against Mr. Cipriano
17 until Monday and came down here. Enough paper by way
18 of notice enclosures and Exhibits had been provided to
19 the other side for them well, to know that if I wasn't
20 here by 8:40 or 8:45, that I was probably running late
21 not failing to attend the court.
22 The courts knows about the new security
23 procedures. My declaration demonstrates I was caught
24 up in the security procedures and if the lines at the
25 clerk's office paying the fee.
26 The Court: let me speak to that issue right
27 now. I want to stick to the issue of the petition.
28 With regard to the question of sanctions, I'm not a
71
1 sanctions jockey. I don't do sanctions a lot. I have
2 done them very rarely. This is one case I have done so
3 very rarely. With regard to the proceedings this
4 Monday, I am not inclined to grant the request for
5 sanctions. I provided an opportunity to make that
6 request so that it would be on today's calendar.
7 I take no offense when someone is late to
8 this court. I get paid by the month to be here and I
9 try and give service whenever people are here. My
10 concern was four or five lawyers were here at your
11 behest and I knew nothing of it and I was not able to
12 verify when you would be here and then therefore I
13 decided to put everything to friday.
14 It is true there have been a number of
15 proceedings on your part where you come in ex parte and
16 people have been waiting for you and I just did not
17 want to cause that to happen this week.
18 But with regard to that question, I would
19 ask that we defer it momentarily so that Mr. Soter may
20 be involved in that. I would like to conclude the
21 litigation of the petition to declare you a vexatious
22 litigant that which transpired on Monday with respect
23 to your not being here is not part of my consideration.
24 Mr. Berry: and just to close it up, your
25 honor, it was the defendants whose exparte applications
26 initially caused this court to say on the record this
27 court does do business other than by way of ex parte
28 motion.
72
1 The Court: that is true. I remember saying
2 that.
3 Mr. Berry: before I made my first exparte
4 application.
5 Your honor, the record as I have shown
6 the court is perhaps the most despicable as to lawyer
7 conduct this court has ever seen or likely to see or
8 has been seen anywhere in the nation, hence some of the
9 matters that the court is now aware of.
10 The representations of counsel as to why
11 i should be declared a vexatious litigant, the evidence
12 has been seen to be nothing more than the building up
13 and beating down of a straw man on a different playing
14 field than exists on the record.
15 The so called five case requirement has
16 shown been shown to be an invention. And I lean on and
17 rely on my opposition analysis in that regard. The so
18 called vexatious litigant holding of Judge Schneider
19 has been shown to be premised on an application motion
20 to the court that constitutes sanctions, at the very
21 least, and much worse.
22 The evidence submitted to the courts in
23 support of having me declared a vexatious litigant has
24 been shown to be built upon sand. The foundations have
25 been knocked out from underneath it by Mr. Cipriano's
26 declaration. The entire record screams that this
27 motion should never have been brought or have consumed
28 one minute of this court's attention. I have no
73
1 further submissions, your honor.
2 The Court: thank you very much, Mr. Berry.
3 The Court: I will go around the table for
4 replies, if you wish. Please be advises that a, I
5 intend to grant the petition and b, if you need to be
6 heard, in briefest response to allegations made, I
7 would ask you to limit it to approximately two minutes
8 because I don't think there is need, but in fairness,
9 requires an opportunity to be heard.
10 Mr. Chaleff.
11 Mi;. Chaleff: I never attempt to snatch defeat
12 from the jaws of victory. I will submit it, your
13 honor.
14 The Court: very well.
15 Mr. Rosen: i will only repeat my my request
16 with respect to the remedy and the order.
17 The Court: we will talk about that.
18 Mr. Chodos.
19 Mr. Chodos: i have nothing further, your
20 honor.
21 Mi~. Moxon: I don't wish to respond to the
22 charges, your honor, and I will leave it at that.
23 The Court: thank you.
24 On several things, Mr. Berry, I have
25 generally enjoyed working with you, and I mean that
26 sincerely. You are literate. You are particular at
27 times poetic. You are capable of great courtliness,
28 and I have enjoyed trying to provide an arena where
74
1 your passion and your concern would receive lawful
2 hearing and lawful access.
3 It is the difficult cases that make a
4 judge a judge, and I have tried very hard to respond
5 with the best judicial fiber I can muster to this very
6 challenging case.
7 I repeat now what I had suggested in my
8 dialogue with you in your argument. I think the
9 petition is more about not so much about what you have
10 done in seeking to redress for the claims you have
11 brought to this court than it is about how you have
12 done it.
13 Thirdly, there is an irony here. My
14 position as a neutral judicial arms-length observer of
15 the passions and accusations and recriminations that
16 are associated with litigation by and against the
17 church of scientology and its present and former
18 deciples has caused me to see a lot of conspiracy
19 theories and suggestions and suspicions and finger
20 pointing. And that leads to a great and sad irony.
21 If one looks for one person who is
22 responsible for the failure of the matters and claims
23 you have brought to this court, if one looks for one
24 person responsible for the church of scientology and
25 its allies prevailing as you might presumptively
26 presume them to have prevailed in this case, the one
27 person most responsible is Graham Berry. That is what
28 the motion is about. That is what the petition is
75
1 about.
2 The way things have happened in this
3 litigation and the way it has been conducted have given
4 support to the petition. With all the due respect,
5 sir, I have to sadly state that if there is such a
6 thing on god's green earth as a vexatious litigent you,
7 sir, sadly, are it.
8 Georges santiata g-e-o-r-g-e-s said,
9 those who do not learn from history are condemned to
10 relive it. Therefore, it is with great regret that I
11 find myself judicially obliged to grant the petition.
12 I do not do so lightly. Access to
13 justice is the central fiber of my judicial obligation
14 and the highest pride of my daily duty.
15 I am in the business of affording
16 opportunities to people to be heard. Not just on
17 pleasant matter but on unpleasant. Not just on easy
18 matters, but on difficult. To hold the doors of this
19 courtroom open to all who seek to draw near, and be
20 heard, in the words, the opening words of the united
21 states supreme court and courts throughout this land, I
22 hold thai invitation proudly to draw you in and you
23 shall be heard.
24 I take comfort in granting this petition.
25 I'm not preventing access to justice for you or those
26 you represent, but only requiring that that access be
27 procured under circumstances that assure that the
28 proceedings in that court will be more orderly, more
76
1 lawful, more courtly, and more legal than those that
2 occurred at times in this court.
3 I'm going to ask the moving party to
4 prepare an appropriate order. I want to talk about the
5 logistics of that and I then also want to talk about
6 other matters that are on calendar.
7 Robert, you may at this time call in Mr.
8 Soter.
9 With regard to the petition, I want to
10 proceed with great care. I want an order that
11 accurately reflects that this court is finding that the
12 petition should be granted on all the grounds advanced.
13 I'm deciding no more than that, but I am
14 deciding that, that the totality of the evidence and
15 information presented to this court support the
16 petition in each of its several grounds and the court
17 50 finds to that extent, but to that extent only. My
18 mission today is only to answer the mail, not to
19 resolve all matters in this dispute.
20 Secondly, I am prepared to entertain
21 appropriate additions to the order if they are within
22 my jurisdiction. The older I get the more I believe in
23 the process and I am not about to make an order about
24 which I have no authority. I simply want to do my duty
25 in light of the circumstances.
26 It therefore occurs to me that probably
27 the appropriate action is for an order to be prepared,
28 to be presented to Mr. Berry and anybody else that
3
77
1 wishes to be heard and to then be signed by this court.
2 The difficulty, if it be one, is that
3 this court is scheduled to be dark starting at the end
4 of business today through and including the 7th of
5 september;. I hope to be out of the country commencing
6 the end of next week, but I will be in Los Angeles next
7 week and if we want to set up a schedule that could
8 present the draft and present an opportunity to be
9 heard, I could schedule now a hearing next week as to
10 my vacation to that extent.
11 I do not want to require that of anybody.
12 I am just in the business of customer service and I
13 want to be reasonable, under the circumstances. And
14 that may not be, let me go to the moving party and then
15 the opposing party on the petition.
16 Mr. Chaleff, how would you like this
17 court to proceed. Take your time if you wish to confer
18 with those you wish to confer.
19 Meanwhile, is Mr. Soter back on the
20 phone?
21 Mr. Soter: yes, I am here.
22 The Court: can you hear me, sir?
23 Mr. Soter: poorly, I'm on the cell phone now.
24 The court: do you wish to maintain telephone
25 access to these proceedings at this stage? I can hear
26 you can you hear me? Pardon?
27 It appears that Mr. Soter, let us go back
28 on the record here while robert tries to reconnect Mr.
78
1 Soter.
2 Mr. Chaleff?
3 Mr. Chaleff: if Mr. Berry will represent that
4 he will file no action between now and when the court
5 returns, I believe we can wait until we get a copy of
6 the transcript and draft an order and serve Mr. Berry
7 and if we can, I think we should set another court date
8 to make sure, but we can do it after the court returns.
9 If Mr. Berry doesn't wish to do that,
10 then I would recommend we come back next thursday and
11 hash this out because I hate to have an interim period
12 where I have to fight what you order is.
13 The Court: unfortunately, that is a risk. I
14 am available for either option, but I would prefer the
15 former.
16 Mr. Berry: this court, your honor, does not
17 have authority to bar me from filing any actions.
18 Your honor, the authority is only as a pro per. Not as
19 party for --
20 The court: i will take that as a no, and
21 therefore I will either sign an order today or I will
22 sign an order next week at a date heard.
23 The opportunity that at least in my mind,
24 to delay this matter was to give you an opportunity
25 for, let me say this carefully, orderly, noticed,
26 rational, calm, civilized principled litigation of this
27 issue, including execution of this --
28 Mr. Soter: hello?
I
79
1 The Court: Mr. Soter, are you there?
2 Mr. Soter: hello.
3 The Court: can you hear me, Mr. Soter?
4 Mr. Soter: this doesn't work. It's breaking
5 up. I can't hear you.
6 The Court: okay, I'm sorry about that. Mr.
7 Berry, what Mr. Chaleff was proposing, and what I would
8 like to think of as a win-win situation, is a situation
9 in which the proponent have the benefit of this court's
10 order today, but you have the opportunity and the
11 benefit of assuring that the finalization of this
12 court's order in this regard is done with careful
13 consideration of points of order that you might arrange
14 pertinent, thereto, independent of the points already
15 considered.
16 If you do not wish to avail yourself of
17 this agreement, I appreciate that. I don't have the
18 power to take it over until I make an order. If you
19 are saying you are not going to wait for me to make an
20 order, that order is forthcoming in the next fifteen
21 minutes.
22 One of my favorite navy bosses used to
23 say, "i want it bad, but I don't want it so bad that I
24 want it bad."
25 I am happy to do things in an ordinarily
26 fashion, but if you require me not to do so, I lack
27 neither the wit nor the will to do it now.
28 Mr. Berry: the court cut me off before I
80
1 finished speaking.
2 The Court: well, go ahead, sir.
3 Mr. Berry: I was going to say that the court
4 cannot, as a matter of law, stop me from practicing law
5 on this point. I think the law is clear on that. I
6 will give a representation, which I was about to say
7 before the court interrupted me, that I will not file
8 any proceedings as a pro per litigent pending the entry
9 of the court's orders.
10 I fully appreciate the orderly approach
11 because we have appeal matters at numerous levels to
12 think about.
13 The Court: I suppose what we could do is craft
14 now a minute order, craft it right now on the record
15 that memorializes this, so should, heaven forbid, while
16 I'm gone somebody perceive that this court settled this
17 agreement to be breached, that there would be a minute
18 order to which ready access could be had.
19 I would propose that we simply stand at
20 ease off the record and let counsel confer about the
21 language, including conferring with Mr. Berry. I want
22 to reserve everybody's rights, and Mr. Berry, you are
23 quite right in reminding me, as I reminded myself just
24 in the past few minutes, that I do not want to do
25 anything in excess of my jurisdiction.
26 I prefer to sail very close to the wind
27 on issues of judicial authority.
28 All right. Mr. Soter, are you back with
81
1 us? I guess not.
2 I would like to also suggest the
3 following, before we take a moment, just a quick break
4 on that point.
5 There are a number of exparte matters on
6 this court's calendar brought by Mr. Berry that I
7 thought Mr. Soter wanted to be heard on, but it looks
8 like we can't reach him.
9 The clerk: his status is he is on the cell
10 phone and on the golden gate bridge.
11 The Court: at least within the jurisdiction of
12 the state of california.
13 The clerk: he can barely hear you.
14 The Court: okay, I'll move closer to the phone.
15 Mr. Soter, can hear me, sir?
16 Mr. Soter: I can barely hear you.
17 The court: can you hear me better?
18 Mr. Soter: I can barely make you out. I cannot
19 hear you.
20 The Court: I am shouting into the phone at two
21 inches. I can't do any better than this.
22 Okay, he can now hear me perfectly. The
23 down side is that nobody can hear you. All right, Mr.
24 Soter has promised not to say anything important.
25 Is there any objection to Mr. Soter
26 appearing on this matter by telephone where the only
27 person w~o can hear him is me because the only way he
28 can hear me on a cell phone from the golden great
82
1 bridge is if I use the receiver and not the speaker ]
2 phone with the understanding that nothing that Mr.
3 Soter said will be operative on anything I do except to
4 the extent that it's communicated fully to everybody
5 else and everybody else has a chance to be heard on
6 that. Does anybody have any objections?
7 Mr. Chaleff: no objections.
8 Mr. Berry: no objections, your honor.
9 The Court: thank you very much. So there is
10 no objection.
11 Mr. Soter, if you have anything to say, I
12 will have to translate it.
13 Mr. Soter, the status of the case this
14 morning is that the court has just now granted the
15 petition to declare Mr. Berry a vexatious litigant.
16 I'm speaking to you, of course, on the record. The
17 court reporter is taking down what we have been saying
18 since I picked up the phone.
19 Counsel are conferring momentarily about
20 an oddly process for that determination to be put in an
21 order I know you are not a party to that. I believe,
22 however, you may be involved, and others are interested
23 in the o']~her matters that are of record today.
24 There are five of them. Some of them
25 are, as we say in the navy, overcome by events. They
26 are plaintiff's exparte applications for
27 a, leave to file an excess page limit
28 brief.
83
1 B, an order to turn over all files.
2 C, an order to preserve evidence.
3 D, a restraining order.
4 And e, an order to continue the hearing.
5 To the extent that the order to continue
6 the hearing was being sought with respect to this
7 hearing, that course has been implicitly and is now
8 expressly denied.
9 With order, to the extent that an order
10 to, for leave to file an excess page limit pertains and
11 I can't recall to this application or to the contempt
12 application that Mr. Berry wishes to bring, my attitude
13 is that the papers that he wishes to submit for the
14 record have been received in this case and the question
15 of whether or not they should be sealed is an issue
16 that I wish to raise on the record with all parties
17 momentarily.
18 With regard, secondly, to the order to
19 turn over all files, that is a matter that I do not
20 deem to be within my jurisdiction at this point, and I
21 would want to deal with that only on a noticed basis
22 that shows this court's jurisdiction.
23 C, an order to preserve evidence seems to
24 be an order to obey the law. And this court doesn't
25 see it having either the jurisdiction or the need to
26 enter such an order.
27 D, the restraining order sought I think
28 are in excess of this court's jurisdiction and to the
84
1 extent that they may not be, do not make out a
2 requirements or an obligation or a need on this court
3 to respond.
4 It seems to me, and I have not heard from
5 Mr. Berry on this, or anybody, I'm just turning to this
6 agenda now with you on the phone Mr. Soter to, I think
7 I would not like to be involved further in these
8 exparte matters except for the event that there is
9 something there that requires this court's action over
10 and above what has already been taken.
11 Let me stop now for a moment and go back.
12 Mr. Soter, have you heard me so far? All right, I'm
13 going to try, I guess there is no point in trying to
14 put you back on the speaker phone. I think it is
15 apparent we can't hear you. Are you in any better
16 circumstances?
17 All right, are you moving or stationary?
18 Well, then why don't you get a convertible like I have.
19 Hold on folks, it is almost noon. I'm not sure where
20 to proceed on this. I guess a more orderly way of
21 doing these things would be to continue this matter.
22 To have a tendered order prepared by the moving party
23 presented and dually noticed to the defending party to
24 have a hearing thereon after this court's return which
25 would be on or after preferable after the 8th of
26 september.
27 And if we were to do that, the concern
28 raised by Mr. Chaleff that I think we are on the verge
85
1 of working out will be a proviso that no party would be
2 prejudiced by that delay in the tendering of a proposed
3 order, and that we would make a minute order
4 incorporating both this court's wishes and the
5 agreement of the parties to that regard.
6 I think, specifically, Mr. Chaleff is
7 concerned that nothing that is ordered, as ordered by
8 the court today but has not yet been crafted would
9 prevent, would take place while that order was being
10 prepared.
11 Mr. Berry has been good enough to suggest
12 as I heard him upon second hearing, that it would not
13 be a problem. I don't want to speak for him or for
14 anybody else. Let me ask you Mr. Soter, with regard to
15 the matter that are on calendar if you might be
16 interested in that process. Would that be agreeable to
17 you?
18 The Court: the answer of Mr. Soter was quote,
19 it's perfectly acceptable, close quote.
20 Let me now conduct discussion with
21 counsel on the record and I will report to you Mr.
22 Soter what they say.
23 Mr. Chaleff, your recommendation?
24 Mr. Chaleff: i agree. We can draft something
25 quickly and whatever else the court wants us to do in
26 the other motion which I'm not sure I'm a party to.
27 The Court: Mr. Chaleff says he is agreeable,
28 but he is not sure whether he is party to.
86
1 Mr. Chaleff, I would like the dust to
2 settle a little bit and I would like whatever is on
3 today to be renoticed, if we need to on a shortened
4 basis, so that we have a clean choice of what to bring
5 before this court that is not confused by the hurly
6 burly and the frustrations which have affected us all,
7 including Mr. Berry in this now. And I would like a de
8 novo please for that date, so that everybody else would
9 be new, Mr. Rosen?
10 Mr. Rosen: your honor, I agree with that and I
11 think that counsel would be advised to address in that
12 de novo pleading whether or not the court has
13 jurisdiction because of the fact that the application
14 for courts to be made in the caption of a closed case
15 and no application made to reopen, I think that should
16 be addressed by counsel when renoticing this.
17 The Court: Mr. Soter, again speaking to you by
18 phone, are you there, sir?
19 Mr. Rosen agrees with the idea of a de
20 novo pleadings and he recommends that those pleading
21 include, as obviously a good lawyer would do, questions
22 about whether or not this court even has jurisdiction
23 in light of the posture of this case to entertain any
24 such request for relief from any side.
25 Mr. Chodos, agreeable?
26 ~F.. Chodos: agreeable.
27 The court: Mr. Moxon?
28 Mr. Moxon: agreeable, your honor. It's my
i
87
1 understanding then that the expartes which have been
2 filed are gone?
3 T~e court: they are denied without prejudice.
4 That would give Mr. Berry a chance to consider what to
5 bring and anybody a chance to consider what to bring.
I
6 i would like them to be brought on a
7 noticed basis. Mr. Moxon and Mr. Chodos report that
8 they are agreeable and so are you. And Mr. Berry, your
9 position?
10 Mr. Berry: i'm filing a motion in department
11 45 with permission for 25 pages to address the contempt
12 matter; is the court denying me the same relief here?
13 The Court: what is it that you wish to bring
14 to this court so that we all understand?
15 Mr. Berry: a motion to have certain counsel
16 declared in contempt and sanctioned for the very
17 conduct in connection Mr. Cipriano that I have
18 outlined.
19 The Court: the answer to your question is that
20 I am not at this point granting any enlargement of the
21 requirement of law with regard to papers. Let's see
22 what you have to say within the time set. If I find
23 that there is reason to consider it further, I will
24 grant you such relief, but at this stage I would rather
25 us stick to the message.
26 I would remind you of the wisdom of my
27 father who instructed me early when I was learning to
28 write don't write telegraph, or as an english teacher
88
1 said, take more time and write less.
2 50 I would urge you, sir, without
3 prejudice, I'm going to deny your application and ask
4 you to state sincinctly within the requirements of law
5 that which you are seeking and if there is reason to
6 seek more from you, then I will go back on the record
7 and hear from you.
8 50 That will be the order that the
9 application for an extension of papers is respectfully
10 denied.
11 There will be a couple more questions.
12 What I would like to do is set out a minute order that
13 does two things, it sets forth a pleading schedule for
14 these matters, including a hearing date and any
15 application to this court and any oppositions and
16 replies to be scheduled accordingly.
17 And secondly, that it sets out some
18 interim agreement and or order that gives comfort and
19 safety and protection to all sides, including Mr. Barry
20 and those opposed to him, to assure that that which
21 this court is done today is not effectively undone in
22 the interim.
23 I want that minute order in place because
24 it is this court's specific intent not to do anything
25 today that would cause any of my colleagues to have to
26 the deal with this matter in my absence. If there is
27 any such risk then in lieu thereof, I will simply set
28 this matter for a hearing next thursday in this court
89
1 and I will terminate or interrupt my vacation for that
2 point because unless we have an agreement, professional
3 to professional, with this court and with each other
4 that this matter will not be placed on any other judges
5 calendar in my interim then I will not defer until the
6 end of my vacation. I will set this matter next week
7 and we will get closure.
8 Mr. Berry?
9 Mr. Berry: I have given that representation,
10 your honor. There is one qualification, as the court
11 might well expect, proceedings relating to the Cipriano
12 declaration and its contents.
13 The Court: what do you mean by that?
14 Mp. Berry: about to be filed. I would
15 represent, I would ask that they be filed in accordance
16 with the provisions of vexatious litigant statute with
17 a request for the prior determination that the court is
18 about to give. That is not declined but that I operate
19 in accordance with what is foregone conclusion.
20 The Court: without translating at great
21 length, Mr. Soter, Mr. Berry has some concerns about
22 being permitted to proceed with the understanding that
23 he proceed in accordance with the vexatious litigant
24 statute. Here is what I'm going to do. I'm going to
25 reset this proceedings until 1:30.
26 I'm sorry, but we are all tired. I
27 certainly am and we have things to do. I am happy to
28 take it off calendar at 1:30 if there is agreement, but
90
1 I want that which Mr. Berry proposed and that which
2 counsel is proposing to be worked out in an acceptable
3 minute order.
4 After that I am simply -- in fact here is
5 better deal, I am right now going to continue these
6 proceedings until next thursday the 26th of august at
7 10:00 o'clock.
8 I will vacate my vacation to that extent
9 if I have to. That matter, that order may be taken off
10 calendar if a stipulation to do so is satisfactorily
11 arrived at by all counsel. I am placing the burden on
12 them instead of on me. I like doing that.
13 Mr. Rosen: somebody will be here in you
14 absence?
15 The Court: yes, the court, robert e. Lee, the
16 court's calender clerk will be present in my absence
17 and absent that, any request for relief needs to be
18 filed in this court by tuesday noon and personally
19 served b~ tuesday noon. Any opposition thereto has to
20 be personally served by wednesday noon and any reply
21 thereto has to be brought to this court on thursday on
22 the hearing.
23 I urge you to find a way not to make that
24 happen, but absent that I have no confidence that I am
25 protecting my colleagues from the burden of this
26 litigation, and quite frankly, not only am I concerned
27 about protecting my colleagues, I'm concerned about
28 placing any lawyer, Mr. Berry or anybody else, in the
91
1 terrible position of trying to explain this to any
2 judge whose doorway this might darken.
3 Mr. Chodos: in light of that is the
4 court going to issue a minute declaring Mr. Berry is a
5 vexatious litigant pursuant to criminal procedure
6 section?
7 The Court: yes, it will show that the petition
8 to that effect was granted and that an order will be
9 finalized on the 26th of august absent arrangement by
10 the parties.
11 Mr. Moxon: your honor, the exparte matters are
12 still to be brought on a regularly notice schedule,
13 correct? This will only be for the order itself?
14 The Court: with regard to that, Mr. Moxon has
15 asked -- Mr. Soter, are you still there?
16 Have you heard what has been going on? That pretty
17 much gives me comfort.
18 The question is what about exparte
19 matters? It is neither my business, my intent, nor my
20 right to prevent anybody from practicing law. That
21 includes the right to practice law in an exparte basis.
22 I will instruct my clerk that if any exparte
23 application is brought in my absence, it is my request
24 including my request to any receiving judge that it be
25 continued to my calendar upon my return.
26 I think that is the only way to be fair
27 to the litigants and to the parties, but I will not
28 issue any preventative order any prior restraint any in
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1 first amendment terms on anybody's right to seek access
2 to the court.
3 50 That will be the order and I assume,
4 Mr. Berry, that protects your concerns.
5 Mr. Berry: there is another concern, the court
6 is entering a minute order declaring me a vexatious
7 litigant today without the parameters of that order
8 being decided. And if the order is entered today, my
9 ten day time limit for my appeal rights runs from today
10 in respect to an order that has no content from which
11 to appeal~.
12 The Court: i'm very happy to come back at 1:30
13 and we will work it out see you all then.
14 (This matter was continued to 1:30 p.M. On the
15 same day.)
16
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19
20
21
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25
26
27
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28
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1 The Court: I have before me a proposed order
2 finding Graham e. Berry to be a vexatious litigant. It
3 consists of a cover page and a page of text. I gather
4 it's been distributed to all sides. If not, tell me
5 50. Hearing nothing, I assume that to be the case.
6 Mr. Chaleff is this of your design?
7 Mr. Chaleff: yes, your honor, it's a
8 cooperative effort of all of us.
9 The court: and it would appear to be a fairly
10 straight-forward first paragraph in response to the
11 order and the a second paragraph that corresponds to
12 that which Mr. Rosen has requested of this court.
13 Mr. Chaleff: correct, your honor.
14 The Court: and is there objection from any
15 party?
16 Mr. Berry: i object to it in its entirety and
17 specifically to paragraph two.
18 The Court: okay, go ahead, sir.
19 Mr. Berry: as to my objection to paragraph one,
20 I won't repeat my argument this morning.
21 The Court: right.
22 Mr. Berry: other than to request the record
23 reflect my reliance on church of scientology
24 versus armstrong and the justification defense.
25 The Court: very well.
26 Mr. Berry: as to paragraph two, I would submit,
27 your honor, that that interferes with my business and
28 profession as a matter that should be considered by the
94
1 court, and should not be part of the record.
2 The Court: may I inquire of the moving party,
3 Mr. Chaleff or anybody else to wishes to speak wherein
4 lies my authority to do this?
5 Mi;.. Rosen: your honor, the authority I
6 believe, if I might start by addressing Mr. Berry's
7 comment. It in no way impairs his ability to practice
8 law. It does require any prescreening to file
9 litigation as a counsel so I think that that is a red
10 herring.
11 With respect to your authority to do
12 this, your honor, the authority to do this, I believe,
13 is derived and this may be just a temporary order until
14 the judicial counsel does this. From 391.7(D), under
15 that provision of vexatious litigant who is required
16 obviously to obtain leave of court, the judicial
17 counsel is supposed to maintain a record of vexatious
18 litigants and to circulate those to all the
19 courts within the state.
20 The order places no burden on Mr. Berry
21 in his capacity as an attorney to represent anyone,
22 does not require any preclearance, number one.
23 Number two, the order is relevant because
24 if Mr. Berry says, I don't want to do it, he is saying
25 in affect I'm not going to tell other courts before
26 whom I appear that I have been the subject of this
27 order.
28 I would bring to your honor's attention
i
95
1 the fact that specifically before Judge Schneider in
2 the central district of california the proposition of
3 sanctions against Mr. Berry and his capacity as an
4 attorney, it is highly relevant to both the issuance of
5 sanctions as Judge Schneider found, as well as the
6 amount of the sanction to see the if the accused
7 attorney is recidivist, and if he has previously been
8 sanctioned and it makes no difference whether his
9 previous sanctions are in his capacity as a party or an
10 attorney, I would also point out that the second
11 authority inherent in it is 391(b)(4) as we set forth
12 in our moving papers, a vexatious litigant
13 determination under (b) (4) applies to someone who is a
14 litigant regardless of whether he is a pro per or
15 whether he is an attorney.
16 (B) (4) certainly encompasses and embraces
17 the notion that a person may be determined an
18 adjudicated to be the a vexatious litigant based solely
19 upon his conduct as an attorney as opposed to as a
20 party.
21 50 On those basis, your honor, I believe
22 that at least until the judicial counsel receives the
23 order and implements the provision of 391.7(D), that
24 this provision is required in order to prohibit Mr.
25 Berry from not disclosing and therefore committing
26 perhaps a deception by omission upon any court in which
27 he appears.
28 The Court: thank you, my view is as follows:
96
1 a, I am very guarded in my approach to
2 matters this severe.
3 B, I don't find specific authorization to
4 make such an order.
5 C, I am confident that the landscape in
6 which Mr. Berry has operated is one, if anything is
7 open, public and notorious and that, therefore, I
8 cannot imagine that anybody who deals with Mr. Berry is
9 not going to know within thirty-seven new york nano
10 seconds thereafter, that he is a vexatious litigent.
11 It seems to me, therefore, that this is
12 unnecessary, un-needed, prejudiced no one by its
13 omission, and evidences it by refraining from doing it.
14 This court's careful approach, guarded approach and
15 limited approach to designing that which it has done
16 today; therefore, I'm going to respectfully decline to
17 enter the second paragraph.
18 I will sustain Mr. Berry's objection
19 thereto.
20 Mr. Berry's objections to the first
21 paragraph is, of course, a reiteration of everything we
22 litigated this morning and that is once again
23 respectfully overruled.
24 As we speak, I am signing the order
25 having excised the last paragraph I will give it to the
26 clerk who will file it and conform it and I assume that
27 the moving party will take such steps as to interject
28 it into the system.
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1 I will tell you that the information that
2 I as a trial judge received about so-called vexatious
3 litigants is spotty at best, irregular at best. I know
4 that shocks you to depend upon a government entity to
5 implement.
6 I invite you to take the steps as you
7 feel are appropriate. I don't recall the pleading with
8 regard to sanctions associated with the petition, it is
9 not my intention to award sanctions. I am aware of the
10 economics circumstances under which this litigation is
11 conducted. I am not in the business of punishing. I'm
12 in the business of protecting the processes of this
13 court and of the courts of this state and this country.
14 And I think what we have done today
15 answers the mail with respect to that mission.
16 Is there anything else that we have to
17 take up today, Mr. Chaleff?
18 Mr. Chaleff: the only thing the court stated
19 that you wanted to set a briefing schedule for all of
20 these other expartes that Mr. Berry filed. I'm not
21 sure, but Mr. Rosen had raised the issue that there
22 doesn't seem to be anything to attach the expartes to.
23 The Court: that is certainly my hope.
24 Mr. Chaleff: and I don't know if setting a
25 briefing schedule, in fact, somehow gives credence
26 or somehow is a impromator to the hearing. So I don't
27 know how the court wants to proceed, and that was the
28 only issue that I wanted to clear up.
98
1 And I assume by the court's comments that
2 it is denying the sanction motion brought by Mr. Soter
3 or is the court only putting that over, too?
4 The Court: I am speaking only in so far as it
5 speaks to the petition for the declaration of vexatious
6 litigant. The remedy I'm providing is the one I
7 provided. The order is limited. I don't want to
8 address ~ny other matter. It is my hope that they may,
9 as we say in navy be obe, overcome by events.
10 I have set a briefing schedule if
11 somebody tells me they want to bring a motion that
12 briefing schedule does not concede any issue including
13 jurisdiction of this court to address the motion.
14 I am in the business of creating
15 sustaining and carrying out, I hope, orderly,
16 respectful justice. And that includes justice to those
17 who are initiating the action and justice to those who
18 are opposing it. Anything else?
19 Mr. Rosen?
20 Mr. Rosen: yes, your honor, you mentioned
21 earlier today that you would address the issue of the
22 sealing, I would like to spend thirty seconds on that.
23 The Court: yes.
24 Mr. Rosen: there are two very important
25 considerations which I think move your honor and
26 rightly so. The first is the government and sunshine
27 and the public's right to know the business of the
28 court.
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1 The Court: I know that I do darn fool things
2 in open court, but the last thing I want to do is close
3 court proceedings or close court documents.
4 Mr. Rosen: that is the one principle that
5 weighs on the issue. The second principle that weighs
6 on the issue, and what has been alluded to today and
7 that is, at least, in california and now a minority of
8 states, that I might add what attaches upon the
9 publication of documents that has been filed in
10 courthouses an absolutely, basically, almost
11 bulletproof privilege against defamation and the like
12 because assuming it is done correctly, given those two
13 considerations, it strikes me that the only way to
14 protect ~ litigant or attorney, as is the issue in this
15 case, including myself, my former partner, Barbara
16 Reeves, my firm, Mr. Chaleff, Mr. Chodos, and
17 Mr. Moxon, is for the court to exercise some control
18 over what gets filed. Knowing that what gets filed is
19 a, going to be an open file and b, is going to be on
20 the internet five minutes after.
21 It strikes me in that context the balance
22 is not to seal, but the balance is as follows, to grant
23 a motion to strike the papers as irrelevant to the
24 issue before you. It is my respectful position that
25 the documents filed by Mr. Berry are not relevant to
26 the motion that your honor heard this morning and
27 granted, and if you think about it to its logical
28 extreme, on any motion involving anything whether I
100
1 should be obliged to answer a form interrogatory number
2 three or something like that, somebody can take the
3 advantage of dumping into the court file all manner of
4 heinous material and say, well, now it's a, not under
5 seal; and b, it's there for me to republish and claim a
6 privilege.
7 The Court: I guess I've been the public eye so
8 long, including going through judicial election that I
9 have learned at some point that the public doesn't
10 begin to care half as much as we do about what is said
11 about us, and that at some point you just have to
12 recognize that people say stuff and that in an open
13 society sooner or later the truth will out and that
14 those who say things about people sooner or later
15 become self impeaching.
16 Indeed, I know people that are offended
17 if they are not included in the list of certain
18 accusations that come from certain sources, their
19 principle response is that you tell a friend. I urge a
20 grown up approach of this.
21 I fully appreciate the slings and
22 arrows of outrageous over statement to put it in your
23 perspective and I am no fan of the way litigation
24 privilege is implemented in california because it
25 encourages exactly what has happened before this court.
26 My reaction to it is number one this is
27 Exhibit letter a, and if the rule stinks, here is a
28 good reason why it does because quite frankly this
101
1 court has seen the dumping of huge amounts of
2 borderline irrelevant material with undue glee by Mr.
3 Berry because it is in his judgment and my observation
4 a license to bash and trash. I have seen it. I have
5 watched it and it's time for somebody to call it what
6 it is and that is what it is.
7 It is borderline childish but by that
8 standard an awful lot of stuff I see in this court
9 would go down the tubes.
10 The next point I make is I don't see my
11 having authority to screen it. It is my duty to follow
12 the law with care and with balance, and I won't put
13 things under seal, I just don't believe it.
14 Mr. Rosen: i didn't ask you to, I asked you to
15 exercise your authority to strike.
16 The Court: and that is something that I don't
17 know about and what I will tell you is, I will, as I
18 said to Mr. Berry on so many things, I am open to tell
19 you what you want to do and why. I don't have it
20 before me and therefore my proposal is that we are
21 going to set it down on a date and you all come and
22 anybody who wants to, what did we say earlier, those of
23 you who wish to be heard draw neigh and you shall be
24 heard.
25 Even if it's from new york city, we are
26 an equal opportunity courtroom. Remember that I was
27 ten years old before I knew that yankees was a baseball
28 team too.
I
102
1 Mr. Rosen: I take the comment if you want me
2 to pursue that you are going to want to see something.
3 The Court: the only concern I have then is to
4 anticipate what you are going to ask next is what
5 between now and then puts me in a position of an
6 interim seal --
7 Mr. Rosen: I haven't asked that.
8 The Court: okay. And I say that, by the way
9 is because I believe it. One of the realities however
10 of being an elected judge is that this court sits in
11 the shadow of a building occupied by the Los Angeles
12 times and it is often said that any judge whoever seals
13 anything runs great political risk in this community.
14 I will say that and I will reject that
15 for two reasons, I happen to be re-elected and I'm in
16 my final term. I can retire in this term, but more
17 importantly, as a judge I was brought up you could be
18 run out of office doing the right thing, and you can
19 stay in office doing the wrong thing. So I am, as god
20 is my witness, I am like a federal court in a state
21 court.
22 Mr. Rosen: i respect that, your honor and
23 thank you for it.
24 The Court: so if you seek a remedy, let's make
25 the process work and on a noticed basis, please. Tell
26 me what you want to do, tell me why. And if the other
27 side has reason to object, we will have a hearing.
28 I'll give you respect, and a result and a reason and a
j
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1 record, thank is how the process works. j
2 Mr. Rosen: thank you, your honor.
3 Mr. Moxon?
4 Mr. Moxon: I have nothing to add.
5 The Court: Mr. Berry.
6 Mr. Berry: your honor, I take it from your
7 comments that the record is being unsealed to the
8 extent it has been sealed this week.
9 The Court: that is correct.
10 Mr. Berry: as far as a briefing schedule is
11 concerned, although I recognize the futility it's my
12 intention to bring a motion for contempt and sanctions
13 in connection with the matter now known to the court,
14 even if it's going to be denied.
15 The Court: as I often say, Mr. Berry, number
16 one, I don't tell people what to plead. I do not issue
17 any prior~ restraints. I do not preclude access to the
18 court. I do invite you to consider, as I tell
19 everybody who practices here the difference what you
20 can do and what you choose to do is called judgment,
21 and it's your ultimately your ability to exercise your
22 judgment that use to measure professionals and people.
23 Mr. Berry: my next point, your honor, is for
24 the purpose of further proceedings, that the parties
25 before this court, those on the caption of this order,
26 plus for purposes of service.
27 The Court: Mr. Berry, you are inviting my
28 attention to the folks that are on the masthead of the
j
104
1 order that is presently tendered today; is that
2 correct.
3 Mr. Berry: that is correct, your honor.
4 The Court: go ahead sir.
5 Mr. Berry: they are the parties upon whom
6 further proceedings above should be served.
7 The Court: I can't tell, sir, because I don't
8 know under what auspicious you seek this. And let me
9 tell you, sir, I can't answer your question for two
10 important reasons, number one, I can't practice law
11 because it's ethically wrong, and secondly, I can't
12 practice civil law because it would be malpractice per
13 se.
14 I have as found out in your papers
15 yesterday, my experience prior to taking the bench was
16 entirely in criminal perimeter.
17 You must determine what it is that you
18 want to bring and who the appropriate parties if any,
19 thereto, extent, to be.
20 Mr. Berry: then I propose serving with appeal
21 and writ papers the parties on the masthead only.
22 The court: i will not require anybody to
23 submit to that claim on your part, to either have their
24 silence be deemed an acknowledgment or be deemed a
25 reply. It would be unprofessional for me to ask you or
26 anybody to respond to who should be served when they
27 don't really know what it is.
28 In invite you, sir, to practice law as
105
1 you are trained and equipped and obviously quite
2 capable of doing, and those that are against you I
3 expect them to do the same.
4 Mr. Berry: finally, your honor, is
5 Mr. Cipriano a party before this court or is he not?
6 The Court: he is not. As of my position
7 today, he is a, and I want to say on the record he is a
8 defendant as to matters that have been dismissed.
9
I welcome him to this court as I welcome
10 everybody here and I offer him, I hope courtesy and
11 respect as I do everyone else. But I don't think that
12 he has a legal standing before this court unless I'm
13 missing something. You know you have a lawsuit and
14 people get sued and people get dismissed and they are
15 entitled to closure. And thank includes all of us.
16 All right, anything else or any comments?
17 Thank you all very much. I know you have spent more of
18 your day than you planned to I guess you are on notice
19 for that.
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106
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF LOS ANGELES
3 DEPARTMENT 35 HON. ALEXANDER WILLIAMS III
4
5 GRAHAM E. BERRY, )
)
6 PLAINTIFF,
)
7 VS. ) NO. BC184355
)
8 ROBERT J. Cipriano, )
DEFENDANT{S}. )
9 ____________________)
10 STATE OF CALIFORNIA
SS.
11 COUNTY OF LOS ANGELES
12 I, CHARLES KUHN, CSR NO. 7810 OFFICIAL
13 SHORTHAND REPORTER OF THE STATE OF CALIFORNIA, FOR THE
14 COUNTY OF LOS ANGELES, DO HEREBY CERTIFY THAT THE
15 FOREGOING PAGES 1 THROUGH 105 , INCLUSIVE, COMPRISE
16 A FULL, TRUE, AND CORRECT TRANSCRIPT OF THE TESTIMONY
17 AND PROCEEDINGS TAKEN IN THE ABOVE-ENTITLED MATTER ON
18 FRIDAY, AUGUST 20, 1999.
19
20
21 DATED THIS ________ DAY OF (MONTH}, 1998.
22
23
CHARLES KUHN, OFFICIAL REPORTER
24
25 C.S.R. NO. 7810
26
27
28
